Public Bill Committee

[Mr. Roger Gale in the Chair]

Roger Gale: I am sure that Mr. Cook has already made his judgment on this matter, but as far as I am concerned, if hon. Members wish to remove their jackets for their comfort, they may do so while I am in the Chair. I cannot speak for anybody else.

Clause 6

Duty to hold inquest

Amendment moved (this day): 103, in clause 6, page 4, line 14, at end insert
(2) Subject to subsection (1), the senior coroner responsible for the inquest must notify any interested person as soon as practicable that they are entitled to be assisted at all times by a legal representative.
(2B) Any legal representation shall be fully funded by the Legal Services Commission..(Mr. Boswell.)

Roger Gale: I remind the Committee that with this we are discussing the following:
Amendment 98, in clause 7, page 4, line 37, at end add
(5) In all cases where a jury is required for the purposes of an inquest, any interested person will be entitled to legal representation at the inquest, funded by the Legal Services Commission..
Amendment 102, in schedule 4, page 129, line 28, at end insert
(1A) Where the senior coroner considers that a report under this paragraph is likely to result from the inquest, the family of the deceased shall be entitled to legal representation funded by the Legal Services Commission..
Amendment 99, in clause 30, page 16, line 21, at end insert
(k) a decision not to allow legal representation funded by the Legal Services Commission to assist anyone falling within section 36(2)(a)..
Amendment 101, in clause 36, page 20, line 18, at end insert
(aa) a legal professional, if one has been appointed for the purposes of assisting the family;.
New clause 11Community Legal Service
(1) The Access to Justice Act 1999 (c. 22) is amended as follows.
(2) In Schedule 2, paragraph 2(1), after sub-sub-paragraph (e) insert
(ea) any coroners court..
New clause 12Legal representation of bereaved families
Where
(a) the inquest is to be held with a jury; or
(b) the deceased died whilst in custody or otherwise detained by the state; or
(c) the deceased died at a centre for provision of medical treatment, and the coroner has a duty to investigate the death under section 7(2); or
(d) any other parties participating in the inquest are assisted by a legal professional,
legal representation for bereaved families shall be funded by the Legal Services Commission..
New clause 13Legal representation of bereaved families (No. 2)
Means testing shall be waived for legal representation of bereaved families if
(a) the inquest is to be held with a jury; or
(b) the deceased died whilst in custody or otherwise detained by the state; or
(c) the deceased died at a centre of provision for medical treatment; or
(d) the deceased died whilst serving in the armed forces; and
(e) any other parties participating in the inquest are assisted by a legal professional..

Tim Boswell: I have merely introduced formally the amendments in this group standing in my name and that of my hon. Friend the Member for North Wiltshire. The Committee is owed both an explanation from me and an apology from him for his absence this afternoon. He is visiting forces in Afghanistan, which seems an entirely acceptable excuseand possibly the only acceptable onefor his absence. I regret his absence. Although it is right that he and my hon. Friends should take an interest in the difficulties and realities that our services face in the region, he has a degree of expertise in this area in relation to military inquests. RAF Lyneham is in his constituency, so he has been closely involved with the Wiltshire coroner, as my right hon. Friend the Member for Witney (Mr. Cameron) has with the Oxfordshire coroner because of RAF Brize Norton. That is an accident of geography and service organisation, which probably had never been anticipated as the coronial system grew up, but it is a sad reality now.
Perhaps, by way of striking a consensual note at the beginning, I can say to the Minister, repeating what I said this morning, that I appreciate her efforts to report to the House on the development of the new defence inquest arrangements. It is a great improvement and has helped both the process and the inquiries. The purpose of the amendments is to make a counterpart disposition in relation to the families further to assist the process.
Let me now touch on the particular amendments at stake. I am sure that the acute textual critique of the Ministerand possibly of the hon. Member for Cambridgewill note some very slight differences between them, and potential contingent arrangements for fall-back positions if she found to my great surprise that she was unable to accept the full Monty at stage one. While the amendments are not absolutely perfect either in drafting or in inter-operation, they amount to a substantial package that would greatly assist families and also the inquiries, which we are busy on this afternoon.
The hon. Member for Stafford was particularly helpful when he responded to my intervention this morning. His new clause 11 is part of this group but it is not in my name. I have no particular difficulty with itat least, not before he presents the case. We look forward to his comments at a later stage.
Let me go through my shopping list. Amendment 103, which is the lead amendment but not the substantive one, states that the coroner should make available information to the families. Amendment 98 relates to the provision of legal aid to families where a jury is empanelled. Amendment 102 makes the same provision in relation to cases in which the coroner wishes to make a report along the lines we were discussing this morning. Amendment 99 deals with cases in which there is to beor may bean appeal against the coronial judgment. Amendment 101 defines legal advisers to families as being interested persons for the purpose of the clause.
We then come to new clauses 12 and 13 and the hon. Member for Staffords new clause 11. My new clauses would make a general provision for the availability of legal aid to families in these types of inquest. As a modification variant on thatdescribed as No. 2new clause 13 suggests the waiving of means tests in this regard. In proposing the amendments, I am grateful for the comments of the Association of Personal Injury Lawyers. When listening to representations from particular interests, one should apply a health warning oneself. However, I have considered the matter carefully, in relation to my feelings of justice, and I am convinced that the approach is the right one.
Although I completely lack the expertise of my hon. Friend the Member for North Wiltshire on military inqueststhe point on which many of us focusI take a specific interest in the matter. Indeed, we once shared that interest when we were membersI remain a memberof the Parliamentary Assembly of the Council of Europe. I found our work extremely interesting; of course, it ends up with the European convention on human rights being served up with the rations. The convention is a very important part of our work and is taken seriously by all 47 member states. Britain is one of the founder members, and as such our response and example are cardinally important. The convention provides a very valuable safeguard and codification of decency in our public affairs.
Over the weekend, I reread the text of the convention and as ever was struck by two things: first, it is clear, straightforward and demanding, in particular, articles 2 and 3, on torture and ill-treatment; secondly, all the necessary qualifications that Governments must make to discharge their business are rehearsed there. The latter point will be the subject of amendments in later groups. It is not as though the nature of our responsibilities have not been considered before. As I said, the convention is a welcome codification of decent practice.
Let us consider what we should be doing for bereaved families during an inquest. Broadly speaking, the scope of our discussions includes persons who die in the care or custody of the state, or for whose death the state or public authorities might be seen to be responsible. In two respects, I shall come back to that point. The foci of this discussion are military inquests, with which we are now sadly familiar, and the perhaps less numerous but sometimes more politically contentious issue of deaths in custody or resulting from state-administered violence.
The convention, which does not oblige the holding of an inquest, imposes on contracting states an obligation to make and publish inquiries. I notice that the Minister is nodding; it is not an issue of contention between us. In relation to military inquests and deaths in state care or resulting from the activities of the state or public agents, we have made much progress on what might be termed the official side. I have referred already to the defence inquest arrangements, which are a great improvement. However, we have not made quite the same progress in relation to the bereaved families. There are two areas of concern regarding inquests: first, that they should consider the facts and decide whether any message for future decision making comes out of them; secondly, that they should provide a measure of closure for the families involved. That has begun to happen, but it has not quite happened.
We will deal first with the military inquests. I have heard the argumentand it would not necessarily apply only to thisthat all that is needed is a single council to an inquiry. It is an inquisitorial system, not an accusatorial one, and a legally expert person could be appointed to prompt the coroner to call witnesses and cross-examine them and assist him in developing a conclusion in the matter. That is not an approach that would attract me, and I hope it would not attract the lawyers who are present here. I do not like the idea of single-capacity activities unless necessary, especially where separate interests are involved. We have to admit that there are interests; one of the effects of an inquest is likely to be that at some stage, it may lead to private proceedings, litigation, or, in certain cases, to criminal proceedings. These are not determined by the inquest or by the coroners verdict but are consequent on it, or rely on facts which may have come to light as a result of the inquiries. In cases of state killing particularly, which are perhaps the most sensitive of these, the state will usually expect to provide its own counsel. If the state is doing that, it is extremely invidious to the families involved if they are not themselves represented.
That leads to the specific issue of legal aid. The advantage of being a lay person without direct involvement is that when one reflects on this issue, one realises that it is slightly odd to talk about legal aid in relation to an inquestthe subject of the inquest is dead. Unless one is going to means-test the estate of the person involved, one must find someone else who may be a relative but who may be a person at some distance. That persons financial circumstances, or their degree of interest in the outcome of the will or probate, might be quite small. On the other hand, there might be a major interest, which might be inhibited by the fact that a particular person was there but declined to put their treasure into the pot in order to fund the position.
I draw a contrast with what happens in public inquiries. I have had much to do with only one case, and my point is very tangential becauseI am relieved to sayI was dismissed at an early stage without any censure. That was in the BSE inquiry under Lord Phillips, which took place in relation to the affairs of the Department of which I was a Minister in the mid-1990s. I came out of that with clean hands, so I was quite relieved. Some Ministers might have been at risk of being censured by italthough I think that they, too, came out of it relatively successfullycertainly, some senior officials were. It was immediately understood that the Government would pay the legal bills because they had acted in discharge of their duties as Ministers or senior officials. That is right. It is a principle that seems to read across to what is going on in an inquest where a death has taken place.
There is another point about military inquests. As the Minister said this morning, there are widely varying practices between countries regarding whether or not they have coronial inquests as we recognise them. Within the Anglo-Saxon tradition, say, inquests are relatively prevalent. My hon. Friend the Member for North Wiltshire reminded me recently of the Hercules crash in which, I think, 10 service personnel were killed.
One of those killed was an Australian national. There was a rather disturbing and distasteful situation because the Australian Government immediately stood behind their deceased service personnel and offered legal aid to the family, but the British Government were not prepared to do that on the same basisalthough some people may have been able to get means-tested legal aid with some difficulty. So there are anomalies to be concerned about.
There are two other points that we should discuss and then I want to come back to the issues of principle before I close, because they are important. The first point is whether the assignment of an advocate, free of charge, to the bereaved family and their associates would make the process more adversarial or even prolong it, which might not be in anyones interests and might be distressing. For example, I am sensitive to the point that the hon. Member for Bridgend made this morning. I do not want lawyers to make a meal of things financially, nor do I want to create a very difficult position for the people who are involved. Nevertheless, it seems both normal and proper, particularly in inquisitorial proceedings, to have the various interests represented and the various perspectives of those interests and their advocates brought to the attention of the court and the coroner, so that they may reach their verdict. I see no sign that that process would have to be spun out inordinately, especially if the coroner was doing their job properly. I hope that whatever evidence was adduced would be useful to the inquiry.
The second point, of course, relates to cost. I am quite sure that the Minister will have considered the matters of cost and, indeed, her associates in other Departments may have some difficulty with them. In the end, one has to approach this with a consideration of what is fair and right. We do not, as it were, attenuate justice for people; we do not abolish the jury system to save money, for example. If it is necessary to spend money in this area, it is proper to do so.
It is also worth considering a point that the APIL has made. If there is an inquest, it may well lead to court proceedings. In fact, there may not be so much an additional increment to cost overall in terms of the Government, but some of those court proceedings will result in claims for damages and so on, and the inquest costs can be factored into the recovery that the Government would be able to make in a particular case. So it is by no means open and shut to say that this is just a charter for a whole tier of extra costs. Instead, I say to the Committee that it is very much a matter of what is reasonable and just.
That brings me to the two substantive points that I want to make in relation to court proceedings, first with reference primarily to service people and secondly with reference to what might be termed state-induced deaths.
Mr. Gale, I know that you asked the question, so you will remember an exchange that you had with the Leader of the House about a year ago, on 13 March 2008. She responded to the question that you put to her by saying:
I agree with the hon. Gentleman that if bereaved relatives with no legal representation turn up on the steps of a coroners court and find that the Ministry of Defence and the Army have a great battery of solicitors and QCs, they cannot help but feel that the position is unfair.
Clearly, I associate myself with that view. She went on to say:
We need to give bereaved relatives at inquests a real sense of fairness and support. [Official Report, 13 March 2008; Vol. 473, c. 421.]
Later, she said:
It is important to improve the Coroner Service so that bereaved relatives can get answers to their questions.[Official Report, 20 March 2008; Vol. 473, c. 1089.]
I agree with all of that.
Without going into the details of specific cases, the Minister will be aware that, from time to time, concern is expressed about, for example, the level of support given to troops, whether their equipment or training is fitting or appropriate and whether mistakes have been made, by friendly forces or otherwise. All those matters, unless they are of the highest degree of secrecy, seem to me entirely appropriate for an open inquest.
That brings me to my final point, about the proprietors of this. In relation to military service, I think my proposal is really part of the military covenant. If we are going to ask people to serve in the uniformed services or otherwise, in foreign locations on behalf of their country, and to put themselves in the line of danger, we have a duty to support them in their lives, and if they give their lives for their country, we have a comparable duty to their family, to see that justice is done and that reasonable inquiries are met.
Let us suppose that we extend that principle to the rather different area of state killings. I appreciate that the persons killed can be persons who are in certain cases not the best or most shining examples of humanity, criminals or otherwise, and there can be cases of accidental killing where this does not apply. In that area too we have an obligation, which dates back to the article 2 obligations that we undertook 60 years ago in the Council of Europe, to see that we do not kill except in the most precisely defined conditions, and that anything done in the name of the state, or as a result of the state, is done and explained publicly, and if necessary people are reproved for their errors.
I was very heartened by the remarks of the Secretary of State at Justice questions last week. In effect, he said that embarrassmentpresumably to public authoritiesis not an excuse for not having an enquiry. In even more striking terms, I would draw the Committees attention to the remarks made by the right hon. Member for Kingston upon Hull, East (Mr. Prescott), the former Deputy Prime Minister, who leads the British delegation to the Council of Europe. He was there in his position as a vice-president, on 30 January this year, which was less than two weeks ago. In the middle of a debate on Armenia, he made a statement that I admiredand I went up to him afterwards and told him so. It says everything we need to say about these proposals. In relation to Armenia and certain events there, he said:
There should be an inquiry. In my country, we killed someone unlawfully, a Brazilian. We had a massive inquiry. It was a terrible tragedy. The authorities were wrong. It is important to hold an inquiry.
I thought that was a splendid remark: blunt, straightforward and to the point.
To summarise, inevitably the state impacts on the citizen, both in terms of its own servants whom it puts in the line of danger, in all our interests, and in what it does either in incarceration or enforcement. I have left aside the issue about what is done in, for example, the nationalised state-provided health service, but you can look at that principle as well.
It seems to me that the basic principle referred to in our evidence last week is one of equality of arms. If we are not having a single-advocate single-function inquiry, but if we are having an inquest where the state with all its resources is represented by legal counsel, it seems to me inequitable not to offer the same opportunities to the families of the bereaved. That is particularly the case where their loved ones have gone to serve their country, but it is equally the case that the descendants and family of people who I was implying might be unworthy or undesirable, who have come into the way of the state and for whatever reason have been killed, should have the opportunity of getting to the truth of what took place, and hearing a public justification of it made, along the splendid lines adumbrated by the former Deputy Prime Minister.
This group of amendments is about resources and about giving access to advocacy. That is an essential part of this process. There are ways of doing itas I said, even the convention itself is not prescriptive of the precise way of dealing with it. But the present situation, although it is improving in some way, particularly on the official side, has not gone as far as it should or as far as it would be just for it to go. I would urge the Committee to consider this with a view to taking matters further forward in the interests of justice, of the families involved, and ultimately of a better inquiry and exposure of lessons to be learnt whenever such tragedy occurs.

George Howarth: It is a great pleasure to follow the hon. Member for Daventry. In fact, it is almost a unique experience. I think it is the first time in over 20 years in this House that I have heard anyone praise my right hon. Friend the Member for Kingston upon Hull, East (Mr. Prescott) for his fluency. However, I know it was sincerely meant and I would not want to take away from what the hon. Gentleman said in any way.
I have a great deal of sympathy with the amendments that stand in the hon. Gentlemans name and that of his colleague, mainly because of the sentiment that is deployed behind them. I will not repeat the arguments that I have made in another context in this Bill, about Hillsborough. But there is an issue about what happens with bereaved familieshow their interests are taken into account, the procedures that are put in place to include them in the process in some waythat runs right through this section. The same principle applies, I accept, to those who are in some way in the care of the state at a time when they meet an untimely end.
So I sympathise with the hon. Gentleman, but I do have a couple of issues that I am either unclear or worried about, which it is probably well to raise at this point. My first worry is thatI think it is what the hon. Gentleman is trying to deal with, and in this I have already said that I sympathise with himthere is a feeling on the part of bereaved families in these sorts of processes that they are in an unequal position. That is to say, whether it is the state or just a straightforward inquest, their particular concerns do not seem to have any way of expressing themselves in the process.
That being common ground between us, the hon. Gentleman then goes on to argue for an automatic right to legal representation. But the way that he described it points in a slightly different direction. The problem is, as he said, that people arrive on day one of an inquest, having certain expectations that are not met by the process. I am not entirely clear in my own mind that having legal representation necessarily resolves that problem. In fact, in some ways it could exacerbate it.
The hon. Gentleman saysagain I agree with himthat he wants to see these events as inquisitorial rather than adversarial. But when professional legal representation is included in any process, it almost inevitably becomes adversarial. Unless the legal representatives concerned have some special kind of training that makes them better prepared for these events than they are on other occasions, it would inevitably go in the opposite direction to that in which the hon. Gentleman hopes to move.

Tim Boswell: I am grateful to the right hon. Gentleman, not least for his opening remarks. I meant what I said about the Deputy Prime Minister because it was very striking.
My judgment on thisI respect the right hon. Gentlemans positionis that this is not a charter for querulous lawyers. If people are denied the opportunity of getting to the facts at an inquest through a difficulty in getting legal representation, they are if anything more likely to go for legal challenges in subsequent court proceedings than if the matter had been picked out carefully by expert lawyers against an inquisitorial rather than accusatorial background.

George Howarth: The hon. Gentleman, as ever, makes a good, thoughtful point very clearly. However, my concern is the opposite of his. Perhaps, in the context he mentions, expectations about what can be achieved through an inquest might be raised rather than lowered. He is right to say that it is difficult for people who have suffered a bereavement to get a complete, clear understanding of the inquest process that they are going into. Perhaps, if they think that they can get legal representation, they might be encouraged to believe that it is an entirely different process from the one that is actually in place on a legal basis. That is a danger. I am not saying that it is inevitable, but I am concerned about that.

Tim Boswell: Would the right hon. Gentleman agree that, of course, all legal counsel in such an inquiry should have and should remember their duty to the court as well as to those they represent? In other words, they are advancing a process of inquiry rather than pursuing a course to a determinative conclusion.

George Howarth: The hon. Gentleman makes his point well, but he might be accused, not by me but by othersI am conscious that I am surrounded by hon. Members with a background in the legal professionof taking a somewhat idealistic view of how seriously such people take their duty to the court on every occasion. However, having already traduced my right hon. Friend the Member for Kingston upon Hull, EastI may not have heard the last of thatit is probably wise for me not to take on the entire legal profession at this moment. Two enemies of such stature in one day may be too much even for me.

Sitting suspended for a Division in the House.

On resuming

George Howarth: I was hoping to draw my remarks to a close. Having offended my right hon. Friend the Member for Kingston upon Hull, East and the entire legal profession, it would be inadvisable for me to go much further. However, I want to finish by making what I think of as a practical suggestion.
The chief coroner, under the new arrangements, ought to be put under a duty to explain to bereaved families, by whatever means are appropriate, what the role of an inquest is, how they might be represented and what sort of representations they should be able to make. I accept the point that the hon. Gentleman is making, namely that people come to the process with expectations that are too high or, perhaps, with a complete lack of understanding about the process that they are involved in. At some point, assuming that either the hon. Gentleman asks to withdraw his amendment or it is defeated, that particular issue is worthy of further consideration.

Jennifer Willott: I shall keep my remarks brief, as much has already been said, ably, by the hon. Member for Daventry and by the right hon. Member for Knowsley, North and Sefton, East.
This is an important issue, because there is both a perceived and a real injustice here. That was highlighted in the comments about families turning up on the first day of an inquest only to see a barrage of lawyers facing them while they cannot afford their own lawyer to represent them. That creates an imbalance in the system that is particularly stark when the state is paying for one set of lawyers and the other sidesupposedly the victims in the inquiryis not funded and does not receive any support to help them make their case. Coroners are clearly concerned about that, as we heard in evidence given to us and as has come through in a number of the papers that we have been sent. That issue is worrying a number of people involved in the process and it seems to be a fairly widespread concern.
It is about getting the balance right, with fairness and equality on one side so that families feel that they are being treated, and are seen to be treated, fairly. The coroners system should not be made too adversarial. It is a different system from that in the other courts. I agree with the Minister on that point. As she mentioned in the evidence sessions, it is important to ensure that we do not end up turning a coroners court into a court like any other. It should be a different system. It is important to get the balance right between the two angles.
However, in cases where somebody has died in the custody or care of or at the hands of the state, lawyers will already be involved in the inquest, as they represent the state. It would be foolish to pretend that we can take lawyers entirely out of the situation. There are inquests at which one side is represented by lawyers; it seems unfair that, for financial reasons, the other side might find it almost impossible to access legal support and advice in the same setting. It seems distasteful, when the state is putting significant sums into legal advice on one side, that others cannot access it at all. At the moment, the balance is too far in one direction. We must be careful not to push it too far the opposite way, but families are missing out and fairness is not being granted.
From what I can see, the amendments occupy a sliding scale or continuum between only a small number of cases being eligible for legal aid and nearly every case involving an inquest being eligible for full legal support. The balance is probably somewhere between those two extremes. To clarify our position, it is essential that a bare minimum of non-means-tested legal support is available for certain cases. Those cases should include service deaths in forces abroad and cases where the victim died in the custody or care of or at the hands of the state. In such cases, lawyers will already be involved on one side; it is only fair for non-means-tested legal aid to be available to the families on the other. There is a much larger grey area, and I am sure that there is much discussion to be had about exactly where to draw the line, but we need to consider a bare minimum, as the families in question are not being treated fairly by the system and are losing out.
There is clearly feeling on both sides of the Committee that we need to consider the issue. It may be that none of the amendments before us is perfect or would work out, but I hope that the Minister will give us her response to the points raised and give the issue a sympathetic hearing. I do not know how generous she is feeling; perhaps she is prepared to come back with proposals to make legal support available at inquests for families in certain limited circumstances. I hope that she will be as generous this afternoon as she was this morning.

Roger Gale: New clause 11 is in your name, Mr. Kidney. I apologise for not calling you after Mr. Boswell.

David Kidney: That is fine by me, Mr. Gale. In fact, I would like to say how fortunate we all are in having the benefit of your sharp mind and quick wit to guide us through these proceedings.
When the hon. Lady said that none of the amendments was perfect, she was obviously not referring to new clause 11. Although I practised as a solicitor for 20 years and appeared at quite a few inquests for bereaved familiessome of them for free, as legal aid was not availableI am not here to argue that we should open up a new area of paid work for lawyers. I am arguing that, in the interests of justice, there ought to be access to legal aid in some cases where it is not available at present.
The ministerial team are open-minded with regard to making some change in the present position, but my understanding is that they do not want to open the floodgates to lots of new claims for expense on the legal aid fund, which is the most generous in the world and already under lots of pressure, by going too far with the amendments. I urge the Minister to consider something like new clause 11, allied to some other measures that I will mention, as the way forward.
I said this morning that my amendment to the previous clause was all my own work, but this afternoon my research is all my own work. I realised that the door is locked on legal aid for representation at inquests because the Access to Justice Act 1999 forbids it. That is why there is an exceptional process whereby people can apply exceptionally to have representation through legal aid at an inquest. I think I am right in saying that, since the Ministry of Defence Command Paper last year, no application for the bereaved family of a serving military person to be represented under legal aid for exceptional reasons has been refused. Each application has been granted. It could be that when we argue about greater access to legal aid, we are talking more about the bereaved families of civilians who have been killed.

Tim Boswell: Does the hon. Gentleman agree that there is a danger that by functionally conceding in one area, that of service deaths, we open up a fresh inequity in that state-induced killings might not be covered in the same way? Is he troubled by that?

David Kidney: Yes, I will come to that. First, let me return to the Second Reading debate on 26 January. The hon. Member for North Wiltshire, who is a member of the Committee but cannot be with us today, asked the Secretary of State whether he would consider making it routine for the bereaved families of service personnel to have the benefit of legal aid without question at inquest. As part of his answer, the Secretary of State said,
I certainly undertake that we will consider it.[Official Report, 26 January 2009; Vol. 487, c. 28.]
My hon. Friend the Member for Islington, North (Jeremy Corbyn) pushed the boat out further and asked about legal aid for every bereaved family at an inquest. The Secretary of State replied:
We are happy to think about it, but as I have said, there are some complexities.[Official Report, 26 January 2009; Vol. 487, c. 28.]
That was the position on Second Reading. My hon. Friend the Minister gave evidence last week, and in answer to my questions agreed that we do not want to open the floodgates to lots of lawyers being present at inquests representing people on legal aid. When I asked whether she would consider an amendment to the present law to make it easier to get legal aid, she said:
We would certainly look at further representation.[Official Report, Coroners and Justice Public Bill Committee, 3 February 2009; c. 16, Q29.]
I was grateful for that at the time.
I would like to suggest a solution. At the moment, the default position gives no access to legal aid for representation at an inquest, although someone can make an exceptional case to get legal aid. I would like the default position to make access available for representation at an inquest, but there should be qualifying conditions. Sadly, one of those conditions would need to be that of maintaining the means test, which some people have spoken against, and there would be others. I do not pretend to suggest what those conditions would bethat would be a matter for the Ministry of Justice, the Legal Services Commission and representatives from the coroners. They should talk about which cases would merit having the benefit of legal representation and which cases would not need that.
Coroners are on the whole a well-qualified, professional group of people who are mindful of their duties to bereaved family members, and of their role in getting to the truth of what caused a persons death, whether or not lawyers representing specific interests are involved. When we approve a code for bereaved families and how they will be looked after in the coroners courts, it will underline the duty of the coroner to have regard to the interests of bereaved families. In a sense, we have come some way already in thinking that we do not need to grant representation in every case through legal aid.
Ministers say that we have an inquisitorial system, and that we do not want to change it to an adversarial one. However, as has been mentioned, many people turn up at inquests who are already represented by lawyers. It could be that somebody connected to the incident that caused the death is involved with a major company, which will pay for their lawyers to turn up. It could be that the statea Government Department or an agencyis involved, and representatives from that will turn up with lawyers. A police service could expect to be legally represented as could a prison, but the bereaved family have no entitlement to help with representation if they cannot afford a lawyer. There is an imbalance, but that does not affect the inquisitorial system. The danger is that the system is a walkover for those who are represented compared with those who are not. For me, it is an argument of justice to say that both sides should be represented. The alternative would be that nobody should be represented, because the coroner is carrying out an inquisitorial system. That suggests too great a restriction on peoples entitlement to have someone to help them to present their arguments and requests for a clear outcome of an inquest. Therefore, I do not buy the argument that someone being represented by a lawyer, having just lost a member of their family, somehow stops the inquest from being an inquisitorial process.
My other point is about the expense involved. How expensive is it? Even though we have the most generous legal aid system in the world, and it is currently under stress, only about 30,000 of the average 500,000 deaths a year in England and Wales lead to inquests, and of those only about 500 involve juries. By the time the cases that would not pass the means test or whose merits do not justify the need for legal representation have been weeded out, we are talking about quite a small number, yet the cases that deserve representation in the interests of justice do get it.

George Howarth: Does my hon. Friend think that, were we to change the arrangements in the way the hon. Member for Daventry wants, and possibly even in the way my hon. Friends new clause envisages, those numbers would inevitably rise? They might not cover all of them, but there would be pressure in the system for more inquests with juries, which might not produce any better a result.

David Kidney: My hon. Friends last point is a relief, because I almost thought that he was suggesting that the number of deaths would go up if people did not have legal aid at inquests, which is certainly not the case. I do not think that there is a risk that allowing people legal aid to be represented at inquests would lead to more inquests because the system for determining why and under what circumstances there should be an inquest is already defined in the Bill, and the definitions do not change because of the access to legal aid.
My argument is simply to question the default position for having the option of being represented under legal aid at an inquest. Is it that no one gets access to legal aid unless there is an exceptional argument that they can make, which I reject? Should not it be, as in most other proceedings, that there is an entitlement to representation, but that there are conditions people have to fulfil before they can be granted legal aid? That, to me, is the fairer and preferable solution and the one I urge the Minister to adopt.

Henry Bellingham: It is a pleasure to serve under your chairmanship, Mr. Gale. I am grateful to my hon. Friend the Member for Daventry for moving the amendment, to which we are sympathetic. There are, however, obvious problems with funding that have already been referred to, and I wonder whether the Minister will touch on that. I want to suggest a series of modest measures that might help the situation and give the Minister some food for thought.
As the hon. Member for Stafford pointed out, the Access to Justice Act 1999 greatly reduced the eligibility of many people for legal aid. I was not a Member of the House at the time, but my hon. and learned Friend the Member for Harborough led for the Opposition when the Bill was going through Parliament and described it as an Act of a heartless and uncaring Government because it took all those people out of the scope of legal aid. As an experienced lawyer and recorder, he is better qualified than I am to comment on that matter.

David Kidney: To be clear on this subject, there was no entitlement to legal aid for representation at an inquest before 1997.

Henry Bellingham: The hon. Gentleman is right, but he touched on that Act, which of course greatly reduced the eligibility for legal aid. On inquests, what concerns me greatly is the extent to which Government Departments, agencies and quangos increasingly turn up with a battery of high-powered lawyers. Is it really necessary for organisations such as the Highways Agency or police authorities to turn up with outside QCs and lawyers? I should declare an interest as I am a barrister, and I have been instructed on several occasions to appear at inquests and have often wondered why a great deal of taxpayers money is spent on hiring outside lawyers when those organisations often have in-house lawyers.
I quite agree with what has been said so far. It is intimidating for members of a bereaved family to turn up at an inquest. They might have been told by the local solicitor that it will cost them a few thousand pounds to have a barrister and many hundreds of pounds to be represented by the solicitor. I have been told by many constituents that they go to the inquest with no legal help. They find it very intimidating.
Legislation is not required to reduce the inequality of arms. It requires a ministerial diktat that says to Departments and agencies, You have in-house lawyers and competent in-house staff who can advise on these legal matters. You do not have to instruct expensive lawyers. As the Minister has responsibility for inquests, coroners courts and the criminal system, perhaps she can call in her colleagues and ask them about the cost of outside representation. Last year, the MOD spent more than £1 million on legal representation at inquests in addition to the cost of its in-house lawyers, which is a huge figure.
What concerns Conservative Front Benchers is the inequality of arms. We need a more effective system than the current one, whereby members of the family or other interested parties can apply for extraordinary funding. In 2007-08, only 12 applications for extraordinary funding out of 69 were granted. The previous year, it was 16 out of 104. Not many extraordinary funding applications are granted. Given that we are looking at a situation of total inequality of arms, we need a better system to allow families to get legal representation when Departments, agencies and quangos insist on having lawyers.

Madeleine Moon: I wonder whether the hon. Gentleman will help me in this matter, as I am not from the legal profession. Would there be tremendous savings, and not only for Departments, if only solicitors and not barristers could appear at inquests? Would it be helpful for the Minister to examine that?

Henry Bellingham: The hon. Lady is right, although I would not go as far as she is suggesting. I have attended inquests where there were QCs and leading juniors, so QCs, juniors and solicitors were present. If Departments insist on having outside lawyers, they should insist on better value for money. If a QC appears, they should do so without a junior and without the instructing solicitor in place. There are ways of driving down costs and of getting better value for money.
We need ministerial action on this matter. I have given the figures for the MOD, and we could just as easily get the figures for every other Department. Will the Minister say how much money could be saved if Ministers issued a decree insisting Departments, quangos and agencies be more sparing in the use of legal representation at inquests?
The outcome of many inquests is a civil action. Am I not right that if negligence is proven at the civil action and costs are awarded to the injured party to be paid by the negligent party, those costs include funding for the legal representation at the inquest? If the Minister and her expert colleagues in the Box do not have the figure, perhaps she will write to me to say how much money is brought in every year as result of those costs being awarded.
If we are looking at how to get more legal representation for bereaved families, we should look at all those costs and find a practical way forward. I hope that the Minister takes those points on board.

Edward Garnier: Having sat here all day, it is incumbent on me to say something to get myself into the Official Report, otherwise people might think that I am not earning my crust. Having heard what I have to say, they might not think that I am earning my crust anyway.
The amendments in the group were tabled by my hon. Friends the Members for North Wiltshire and for Daventry. I thank the latter for what he said and the way in which he said it, and I thank the hon. Member for Stafford for the way in which he advanced his argument on new clause 11.
I want to say one or two things to complement what my hon. Friend the Member for North-West Norfolk said. This is not a matter for party political controversyall members of the Committee are trying to edge their way forward to find a common-sense way of achieving justice. Of course, in any coroners inquest, we want a resolution as to how, why and when a deceased person met their death. That is a shared objective, and if we can arrive at it in the most effective and least troublesome way for all concerned, including the Treasury, so be it.
It is easysometimes politicians do thisto fall into the trap of assuming that lawyers have the same venal motives as some politicians when there is a dispute. I have found it possible in my life, as a lawyer and a Member of Parliament, to be deeply unattractive as an MP but to be utterly charming and wonderful as a member of the Bar. It is entirely possible, when engaging in any fact-finding exercise, be it an adversarial trial or an inquisitorial inquest, to behave sensibly and to address the witnesses and advance ones arguments with a degree of politeness and courtesy. It is not difficult. If I may say so, I do not think that lawyers automatically become aggressive and rude, or forget what they are there to achieve, when they get into court. They are there to achieve justice, as a matter of public policy, but also to serve the interests of their clients, and there is nothing wrong with that.
I fully accept the difficulties that any Government must have, especially during a recession or, as the Prime Minister occasionally says, a depressionI probably understand how he feelsto work out how best to order the expenditure of public money. Any suggestion that a piece of legislation will or could increase state spending is something about which Ministers must be careful, as must those who aspire to be Ministers. None the less, there must be a system that can be devised that takes us out of the problems of the Access to Justice Act 1999 prohibition, and those that existed beforehand, and that gives the coroner the discretion, in the appropriate case and when it is helpful, to award legal representation assistance.
I am not here to tell the Committee how we would design that systemthere is no pointbut there will be cases when it is appropriate, fair and efficient to give assistance to those who are unable to afford representation, apart from the military cases mentioned by the hon. Member for Stafford. One problem with sitting in cases when one or both parties are unrepresented is that it takes an awful lot longer. It requires the judge, fact finder or arbitrator to descend into the forum to extract from emotionally charged parties the real issues in the case. It is much easier for the tribunal to have represented parties in front of them, because, by and large, those parties understand the factual and legal issues that need to be distilled in order to arrive at a just conclusion.
Essentially, I am asking the Government to understand that there will be occasions when it is wholly unnecessary for either side or any party in an inquisitorial system, such as a coroners court, to be represented. I have appeared in only two inquests, once as an advocate and once as a witness, and the issues in both those cases were not difficult to resolve. Both cases involved motor accidents, and I was paid by the drivers insurance company in the case in which I appeared as a barrister.
If the coroner were given discretion to decide whether representation is required, he could, according to a template or means test, work out what level of representation is required. I would go so far as to say that not simply should the successful party be able to recover any costs incurred during the coroners inquest in subsequent civil proceedings, as my hon. Friend the Member for North-West Norfolk has suggested, but when an unnecessary dispute is entered into and time is wasted by one party running arguments or factual issues that are not germane or that could be resolved without dispute, the coroner should have the power to award the costs of an issue or of the inquest to one or a number of parties.
We all agree that there is something deeply unattractive about a state organisation appearing at an inquest with a room full of lawyers, when the bereaved families, who are emotionally distraught, confused, unable to seek fairness where it exists and incapable, because of their situation, to advance their own interests effectively, are at that huge disadvantage. Yes, there should be equality of arms; yes, there should be fairness; and yes, there should be common sense; but above all, let us see what we can do to achieve justice.

Bridget Prentice: If I have not welcomed you to the Committee this afternoon, Mr. Gale, let me join other hon. Members in doing so.
I start by telling the hon. Member for Cardiff, Central that I cannot be as generous as I was this morning, and I do not want to raise her hopes further during my comments. Some constructive comments were made during the debate, and I will consider them to see whether more can be done, as the hon. and learned Member for Harborough has suggested, not only for bereaved families, but in the interests of justice. However, I would be remiss if I did not put on the record the fact that the proceedings are inquisitorial, not adversarial. They are designed to establish the facts about a deathwho the person was, and the how, the why and the when of their deathand to consider the broader circumstances for article 2 cases. I shall return to such cases in a moment.
In response to my hon. Friend the Member for Stafford, even with the inadequacies of the present system, and if one side had a phalanx of lawyers when the bereaved family was not represented, I do not believe that the case would be a walkover. The vast majority of coroners are perfectly capable of ensuring that there is a proper balance and a proper investigation. I would not go down the road of suggesting that simply because one side brings along a QC, a junior and several others it will necessarily receive a better deal from the coroner. Coroners take considerable pride in ensuring not only that they remain impartial, but that bereaved families have their questions heard and answered.
It has been more or less accepted in Committee that only in the most legally complex cases would the assistance of counsel to the inquest be necessary, and the revised coroners rules will make provision for that. The majority of inquests do not need representations. Legal helpthe advice and assistance level of legal aidis available subject to financial eligibility and the usual tests. I am grateful that most members of the Committee recognise that the means test must remain, if we were to go down the route that has been suggested.
Legal help would also fund someone to attend as a McKenzie friend, if that is appropriate, providing that the coroner gave permission. Under clause 30, bereaved and other interested people can appeal certain decisions free of charge to the chief coroner. Advice on the format of those appeals and the scope of the appeal system will be published in the final version of the charter that hopefully will be available before too long. Obviously, the chief coroners office will also be able to provide advice on appeals, although not direct legal advice.
I hope that, to some extent, I have answered the question of my right hon. Friend the Member for Knowsley, North and Sefton, East about making sure that families are informed about how inquests are structured. We have put the responsibility of the charter on the coroners office to make sure that people know how the inquest will be conducted and what the coroners role will be.
Naturally, we accept that there are cases when it is in the wider public interest that a bereaved person should be represented. In military inquests, there has been funding for exceptional cases, as there has been in cases involving hospital deaths. It is already in scope for deaths in police and prison custody, which are likely to raise article 2 issues. When I was the Minister with responsibility for legal aid, I always made exceptional allowance for any death that happened in custody, because I considered it important that the wider public were served. Means-testing has to remain, as well as the opportunities for greater access for family participation that will be set out in the charter.
It would be easy to say that the cost of extending legal aid would be prohibitive and to leave it at that. However, let me give an example of the size of the resource problem. We estimate that about 800 inquests a year involve public authorities. They cost an average of about £8,000 for legal aid, which amounts to £6.4 million a year. If we were to extend legal aid to all inquests, the sum would be much larger. In 2007, there were almost 31,000 inquests in England and Wales.
The equality of arms argument is quite attractive. There is a perception that a family or an interested party that is not represented and that sees a phalanx of lawyers on the other side feels that there is not an equality of arms and that they will not receive a fair hearing. However, I am not entirely convinced that the way to improve that position is simply to provide another army of lawyers on the other side. Perhaps I should declare that I, too, am not a lawyer. I am not saying that so that I can attack lawyers per se, but I agree with the hon. Member for North-West Norfolk, who said that we should challenge why one side feels always that it has to have such high levels of representation. He suggested that I serve a ministerial diktat on other Departments. What I might do instead is send my hon. Friend the Under-Secretary of State for Justice into other Departments to explain to them in clear terms that that is not necessarily the best way to achieve what we want in terms of justice at inquests. She is a ferocious terrier when it comes to making sure that we get proper value for money. That might be another task that she could take on board.

Edward Garnier: There is a perfectly good point to be made about the overuse of lawyers just as there is about the underuse of lawyers. An inanimate entity such as a Department or a corporation can only be represented by a human being at an inquiry. While I accept that there are Ministry of Justice in-house lawyers who could represent the Department at an inquiry, they may be doing other things. Sometimes it is cheaper and more efficient to instruct a lawyer. I do not think that you need to box yourself in, Mr. Gale, to a one-size-fits-all

Roger Gale: I dont feel remotely boxed in.

Edward Garnier: You have never felt boxed in at all, Mr. Gale.
It strikes me that the Minister might want to hold the Under-Secretary in the Department before she is sent off around Whitehall. There may be some value, and it may be a more efficient use of the system, to instruct outside lawyers, who may be cheaper.

Bridget Prentice: The hon. and learned Gentleman makes a fair point. I am sure that if my hon. Friend takes on board this task on my behalf, she will ask those questions, too. There are occasions when an outside lawyer may well make more economic sense than an internal one.
I take on board what my hon. Friend the Member for Stafford said when he quoted both me and my right hon. Friend the Secretary of State. We recognise that there is an issue. We would like to see more fairness in the system. It is important that bereaved people and other interested parties have more accessible opportunities for involvement in the process. That involves not only legal representation but the information that is generally available to them. It is about support through the witness service and a whole variety of other areas where people can be helped.
I turn briefly to amendment 101, which advocates making legal representatives interested persons under clause 36. I have to resist that one. It would give the representative the right to appeal under clause 30, but I can see absolutely no justification for that. Families already automatically qualify as interested persons, and legal representatives who are acting on their behalf need to take advice from the family, rather than having the separate ability to make an appeal themselves. There is also discretion for the senior coroner to categorise any other person as interested, if they see fit.
Finally, amendment 102 proposes that bereaved families should be entitled to representation on the basis that the coroner may issue a report to prevent further deaths. There is a practical issue there. A coroner would not necessarily be able to tell in advance whether they were likely to issue such a report. Even if that were clear, that would assume that following the conclusion of the business of the inquest there would be a separate set of proceedings where the coroner would be addressed as to whether a report to prevent future deaths should be made. That is certainly not our intention in this Bill. Such reports are entirely a matter for the coroner when they have considered all the evidence. If we were to ratchet up the proceedings in that kind of way, it would not necessarily give us a more satisfactory outcome. We consulted on that change last year and as a result decided it was not a sensible way forward.
As I have said, hon. Members are only too well aware of the constraints within which we work in terms of resources, not just in legal aid but across the board. I hope that that does not mean that we allow the best to make the enemy of the good. The reforms in this part of the Bill are a good set of proposals. Yes, some new resources will make them even better. I dare say that if I were composing my own shopping list, I would think of a number of things that I would put in before I would extend legal aid, in particular in terms of benefiting families and putting them at the heart of the system.
I will consider the issues and the very practical and constructive comments that have been made today, in particular whether there is any need to move the exception from one side of the line to the other, as my hon. Friend the Member for Stafford suggested. I will certainly come back to the hon. Member for North-West Norfolk on costs. He has already highlighted one in terms of the Ministry of Defence spending over a £1 million. Another idea that I thought somebody might come up with is if a Department or an agency decides to employ barristers, it would also pay for such representation for the bereaved family. That might focus a few minds quite sharply. I am not advocating that at this stage in the Bill, let me hasten to add. These are issues that I think we can consider over the next few weeks. In the meantime, I ask the hon. Gentleman to withdraw the amendment.

Tim Boswell: This has been a thoughtful and generally good-natured debate which has brought to the attention of the Committee some of the feelings on all sides about what is fair and right in these very sensitive issues. I would not exclude from that the Minister, although I am not wholly and entirely surprised that she did not fall over at the first suggestion. I listened in particular to her strictures on amendments 101 and 102, and I will obviously reflect on those.
In relation to the general argument, I am a little disconcerted thatthough I hold no brief for themlawyers have been felt in some sense to be an irritant to the inquisitorial process, as if they were necessarily going to make things more difficult. There is an argument on the other side that when dealing with family members who are sometimes confused, unfamiliar or in certain cases distressed, there is a case for good support and advocacy, both in terms of the court and of their own experience going through the court. I hope the Minister will continue to reflect on that.
I am sensitive, as we should all be, to the question of public cost, what the net cost would be and what value would be achieved in terms of justice gained. I would say with no doubt at all that in the pursuit of equality of armsa phrase we have used a number of timeswe would not want to create an arms race with yet further legal escalation. I recall that in my brief and no doubt inglorious career as a member of a tribunal 25 years ago, I was concerned that what I thought had been three good persons meeting together, hearing a bit of evidence and concluding a decision after lunch, had turned into silks coming for three or four days and developing their case in what I caricatured as a legal arms race. Nobody wants that to happen. I understand the constraints under which the Minister is operating.
It seems that if we are to make progress in this area, we need to have regard to general principles. One is access to justice, in the sense that people should be able to get the advice that they need and feel that they have been able to do that, that they have not been left bereft by the process. Secondly, there is a general point. Some interesting perspectives have come out on what is or might be the equality of arms. If one side, in effect, takes up a weapon, others might be able to respond to that. Returning to my remarks in praise of the right hon. Member for Kingston upon Hull, East, the former Deputy Prime Minister, I think that, on state killings, there is a huge issue about the integrity of the process. I suspect that we may come on to that in the next debate, so I shall not go on at length, but I must say that we need to satisfy people who are quite untrusting of the state at the momentI make no remark about the quality of the present Government; it is just the way people areon the question of whether we treat them fairly. That is the spirit of article 2 and, as the jurisprudence develops, ultimately how article 2 will be interpreted. Standards and practices may well have to correct themselves over time to keep ahead of the article and the challenges under it.
I am always conscious, as the Minister herself has said that she is, that the best can be the enemy of the good, and, having set out those high principles, I must say to her in conclusion that I welcome the way in which she has reflected on and, in effect, carried out a dialogue with Committee members. It would not serve the interests of my case if I were to come in all guns blazing and force a Division, but, in the spirit of what she has said, I hope that she will continue to reflect on practical ways in which we can make access to justice easier. If she informs herself with that principle and has regard to all the other factors, including the resources involved, we will move towards a better conclusion. If we do that, many people will be grateful to us. In that spirit, and after a constructive debate, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

Clause 7

Whether jury required

Henry Bellingham: I beg to move amendment 97, in clause 7, page 4, line 19, leave out from if to end of line 24 and insert
the coroner has reason to believe
(a) that the deceased died in custody or otherwise in state detention; or
(aa) that the deceased died whilst serving in the armed forces; or
(ab) that the deceased died at a centre for provision of medical treatment, and the coroner has a duty to investigate the death within section 1,.

Roger Gale: With this it will be convenient to discuss the following: amendment 95, in clause 7, page 4, leave out lines 22 to 24 and insert
(aa) that the deceased died at a centre for provision of medical treatment, and the coroner feels there are reasonable grounds for an inquest,.
Amendment 71, in clause 7, page 4, line 27, at end insert or
(iii) any other state official,.
Amendment 94, in clause 7, page 4, line 29, at end insert
(2A) Any person falling within section 36(2)(a) or (b) may make a request to the senior coroner that a jury be assembled for the purposes of an inquest..
Clause stand part.
Amendment 96, in clause 30, page 16, line 13, at end insert
(including a decision under section 7(2A).

Henry Bellingham: The clause is all about whether a jury is required, and I entirely accept that having a jury sit with a coroner will be the exception rather than the rule. The overwhelming majority of inquests take place without a jury, and it would be completely impractical if that were not the case, because the costs and logistical implications of having a jury are significant. On the other hand, however, having a jury in place in an inquest is a comforting factor for the bereaved, and we should not ignore it, because we are discussing families who will be going through an appalling period in their lives. They will have lost someone, often in tragic, unexplained or violent circumstances, and having a jury in place can provide a great deal of comfort. They feel that because a jury is made up of ordinary people like them, it is more likely to be sympathetic and understanding. We are not talking about the adversarial characteristics of a Crown court, but about a completely different system altogether. In that respect, the clausein particular, subsection (2)is too restrictive. I entirely accept, however, that we have what we might call an escape provision in subsection (3), which states:
An inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so.
So, there is a fall-back position.
Amendment 94 would enable any person falling within clause 36(2)(a) or (b) to make a request for a jury to be empanelled, and it would be for the coroner to decide. Amendment 95 would extend the grounds on which a jury could be used and empanelled and add to the existing list private hospitals, so the situation could involve not only someone dying of unnatural causes in a state hospital, but someone doing so in a private hospital.

Tim Boswell: Would my hon. Friend like to reflect on the fact that in many cases, with the developments in the health service, persons receiving treatment in a private sector establishment will be funded by the public authorities through the NHS? If we do not move forward, we might have the same problem that we have had with state-financed persons in care homes where, if it is a private home, some provisions of the Human Rights Act 1998 are said not to apply.

Henry Bellingham: My hon. Friend is quite right on that point. We should look at clause 7(2)(c), which contains the words
that the death was caused by a notifiable accident, poisoning or disease.
That will obviously cover private hospitals or establishments as well. It is important that we get that in the Bill.
Amendment 96 is consequential on amendment 94. Amendment 97 would extend the grounds for an inquest with a jury and remove some restrictions that are in the Bill, which refers to the fact
that the deceased died while in custody or otherwise in state detention and that either the death was a violent or unnatural one, or the cause of death is unknown.
Amendment 97 would effectively take out that restriction.
I would like to pick up on a briefing sent to us the other day by Inquestan organisation working for truth, justice and accountabilitywhich I submit the Government should listen to more often. Its briefing note reads:
However, we raise a note of caution in that new clause 7(2) differs from the current Coroners Act 1988 clause 8(3) in that it does not specify that an inquest must be held with a jury if the death occurred in prison and was neither violent nor unnatural, or where the cause of death was unknown, or does not fall within the other criteria set out in 7(2) a  c. The intention here is to allow coroners discretion not to have a jury in cases of deaths of detainees where there is clearly no reason to do so.
My concern is that we will see fewer such inquests taking place with juries. That which is meant to be the exception to the rule could become the default position.
I am concerned about what the Government are doing here. Obviously, we want to see a system that is as efficient as possible, but we also want a system that is fair. As I said at the start of my brief remarks, it is important that the public have complete confidence in the system. When we are talking about deaths that are at the most violent end of the spectrum and deaths where there are important questions about what happenedbecause, for example, we are looking at something that took place in state custody or in another part of the state systemhaving the security and comfort of a jury is important.

Madeleine Moon: In looking at these proposals, I am a little concerned that what is being is suggested is an extension on an extension. Where do we draw the line? For example, why would we not include the death of a child in local authority care? Why would we not include the death of someone in a nursing home where medical treatment of a sort is being provided? At what point do we stop extending the number of people who require a jury to be called?

Henry Bellingham: I am grateful to the hon. Lady for her intervention. All the examples that she gave could be covered by clause 7(3), which states:
An inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so.
I hope that, in the circumstances to which the hon. Lady alluded, the coroner would take the view that a jury should be appointed.
The Minister could well argueperhaps she willthat we already have plenty of cover in the Bill, but the concerns that have been put forward by, for example, Inquest and the Association of Personal Injury Lawyers should be looked at. I hope she can respond positively to our proposals.

Jennifer Willott: I wish to speak to amendment 71, which is in my name and that of my hon. Friend the Member for Cambridge. It picks up on the point just mentioned by the hon. Member for Bridgend about the circumstances in which a jury should automatically be considered for an inquest. Clause 7(2) states:
An inquest into a death must be held with a jury if the senior coroner has reason to suspect...that the death resulted from an act or omission of...a police officer, or...a member of the service police force.
It is not clear to me why the list of responsible state officials is restricted to only those two classes of people. Amendment 71 would insert the words any other state official, meaning that it would be clear, under subsection (2), that someone who had died at the hands of, or in the care or custody of, the state would be eligible for a jury inquest. Will the Minister comment on why the requirement is limited to a police officer or a member of a service police force? It is not clear why the measure is quite so restricted.

Madeleine Moon: Does the hon. Lady agree with me about what is of most concern? Clause 7(3) states that a jury may be required for an inquest when a senior coroner thinks that there is sufficient reason for doing so. There is almost the creation of a second class of citizen when one compares people who have been in the care of a local authority, or in a residential care or nursing home, with those covered by the items listed in amendment 97. We must look towards giving parity of esteem to all individuals who have any involvement with the state.

Jennifer Willott: I completely agree. The main purpose behind the amendments is to clarify the situation.
The other category that is missing, in addition to the example that has just been so clearly given, is, amazingly, the security services. There would be a lot of public concern if someone who died in a hands of the security services was excluded from the provision when, if the death had happened at the hands of the police, they would not be. Adding the words any other state official would clarify the situation, as would dealing with the issue raised by the hon. Member for Bridgend.
The hon. Member for North-West Norfolk made many valid comments. I will be grateful if the Minister responds to the point that, aside from the point about parity of treatment if a person dies in the care of a state body, subsection (3) gives a coroner quite broad discretion on the cases for which they would summon a jury.
Does the Minister have any figures on the number of inquests that take place under the coroners existing discretionary power? What proportion of jury inquests take place because they are prescribed by law, and how many are held because the coroner has chosen to use their discretion? If a large proportion of jury inquests are called at the discretion of the coroner, we might be a bit more relaxed about the use of such a power. If few are ever called, however, I would be concerned about relying too heavily on subsection (3) as a clear-up measure.
Clause 7(2) removes one of the existing reasons why juries have to be called: when a death occurs in circumstances that, if continued, could be prejudicial to the health and safety of the public. We heard about many such cases during our evidence sessions, and members of the Committee have mentioned such inquests during our deliberations. Clearly, one would expect that the Minister would intend for those types of cases to be picked up under subsection (3), if necessary. There has not been any policy justification as to why health and safety cases have been removed from the list of those that require a jury hearing, although other cases that require a jury have been left as they are. Will the Minister clarify why that has happened?
As we have already discussed, the right of people to have a jury at an inquest does not need to be too broad because coroners are extremely experienced in undertaking inquests. They can tease out the truth of different circumstances. However, it is a fundamental part of justice being seen to be done that juries are called in inquests, especially those involving the state. If we limit too greatly the circumstances in which juries are called when the state is involved, peoples view on the success of the whole system will be clouded.
We know that only a very small proportion of inquests have juries. A small increase in the number of cases that automatically need juries would involve small and limited costs, but it could have an impact on public opinion. It is important to ensure that we are seen to be fair and not over-restricting the cases for which juries may be called.

Bridget Prentice: The hon. Member for North-West Norfolk probably knows what I am likely to say about amendments 94 to 97. He knows that I do not think that every death in custody or state detention necessarily needs an inquest with a jury. The most obvious example would be if someone died of natural causes in a prison hospital. Why should there automatically be an inquest then when there would not be one for someone in similar circumstances in a general hospital?

David Howarth: I presume the answer to that is to ensure that the person did die of natural causes in a prison hospital.

Bridget Prentice: I think the post-mortem would probably establish that. It is not necessary to have a jury to sit waiting for that to be discovered.

David Howarth: Who is to be the finder of fact if there is a dispute? Is it to be the coroner or members of the public? If a death occurs in custody in any way, the finder of fact should be ordinary people.

Bridget Prentice: I am afraid I have to disagree with the hon. Gentleman. I would have thought that that was a pretty obvious example. If a post-mortem finds that someone died of natural causes, the coroner is more than capable of carrying out an investigation and a jury is not needed. In fact, about half of all deaths in state detention occur due to natural causes, and coroners are more than capable of dealing with them. If there were concerns about negligent care, the guidance issued by the chief coroner would almost certainly indicate that the coroner should exercise their discretion and call a jury. Equally, as the hon. Member for Cardiff, Central said, in the vast majority of cases, coroners sit without juries, as they do when dealing with cases of deaths of armed forces personnel on active service. We have rightly heard tributes to the coroners in Wiltshire and Oxfordshire for the way in which they have dealt with the bulk of the inquests into deaths on active service in Iraq or Afghanistan.
I am unclear as to whether amendment 97 proposes jury inquests for all deaths involving armed forces personnel, including training accidents or even deaths off duty. I would certainly resist the idea that a jury would be necessary in such cases, unless the situation was similar to those cited in clause 7(2). The Government are criticised if we appear to be attempting to stop coroners who sit alone in military inquests from making critical remarks about Government policy, yet the Opposition are suggesting that coroners cannot carry out such investigations on their own and that they need juries. Opposition Members might have to address that contradiction.
Insisting on a jury for all inquests into deaths at a hospital, hospice, clinic or other centre for medical provision, whether public or privatea chemists shop, for exampleis similarly unnecessary. Again, coroners independence shows that they are more than capable of carrying out inquests and of making robust and, if necessary, critical findings without the assistance of a jury. I am not convinced that jury inquests should be extended on that basis.
The hon. Member for Cardiff, Central asked why clause 7(2)(b) mentioned police officers. It is a restatement of the Coroners Act 1988. We extended the provision to include the service police force because we felt that if we were dealing with police officers in one form, we ought to deal with them in their other forms. The hon. Lady was advocating extending the provision to all state officials, but it would be difficult to define a state official. Let me put a scenario to her. If a tax inspector was driving between two inspections and was involved in a car accident in which someone died, it could be argued that he was acting in his capacity as a state official. However, if the accident happened after he had finished work and was driving home, would she suggest that that, too, would automatically require a jury? My problem with amendment 71 is that it lacks precision.

Jennifer Willott: The provision, as amended by amendment 71, would still be subject to the official acting
in the purported execution of the officers or members duty as such.
Therefore, they would be no more liable if they were driving between appointments than a police officer would be when driving without blue lights flashing. Either a rule applies or it does not. I would not have thought that a tax inspector driving between appointments could be legally considered as executing his duty, so he would not be covered.

Bridget Prentice: I do not accept the argument made by the hon. Lady. If we extended jury inquests to all such cases, does she not feel that it would be too wide an extension in terms of who might be defined as a state official in those circumstances? It seems nonsensical to extend jury inquests.

David Howarth: The other, obvious answer to that is that someone who counts as acting on behalf of state authority for the purposes of article 2 would count as a state official herethat is certainly the clearest way of doing it. If the Minister thinks that the amendment is too vague, I ask her about this specific case: is she against adding the security services to the list?

Bridget Prentice: That would be a far better argument than that for the general extension to state officials. The hon. Gentleman mentions article 2, but it is not referred to in his amendment. My objection to amendment 71 is its lack of precision; if he came back with a different amendment, perhaps we would have a different debate.
I conclude by reminding the Committee that in clause 7(3), there is already the provision for an inquest to be held with a jury if the coroner thinks that there is sufficient reason for doing so. Therefore, if a death is attributable to the act or omission of a state officialas the Liberal Democrats would have itin the purported execution of their duty, and if the coroner feels that the circumstances of the death require an inquest to be held, then it can be held. All the examples given by the hon. Members for Cambridge and for Cardiff Central can be perfectly covered by the subsection.
Finally, if an interested party believed that the circumstances of a particular case warranted an inquest to be held with a jury, but the coroner had decided not to call one, that party could appeal to the chief coroner under clause 30. Again, that will give sufficient protection in any case where people might feel that a jury inquest would be more appropriate. On that basis, I hope that the hon. Member for North West Norfolk will withdraw his amendment.

Henry Bellingham: I am grateful to the Minister for her comments, and in particular for pointing out that in subsection (3) there is a wide power for the senior coroner to empanel a jury if he thinks there is sufficient reason for doing so. I take on board that all my concerns, and the examples that I gave, could be countered by that.
The Minister hinted that there might be a degree of hypocrisy and opportunism on the part of the official Opposition in wanting to have more juries in place for defence inquests. However, there is no contradiction at all in our policyin fact, we have argued consistently that there should be more transparency in those inquests. We will come in a moment to our concerns about secret and certified inquests, but we have never suggested that there should be anything other than more transparency. Having a jury in place, notwithstanding the Ministers arguments, can assist with that transparency and above all lead the families involved and the wider public to conclude that justice is being done. On that basis, and based on what the Minister has told usI want to reflect on what she said, and I may well come back to the issue at a later stageI beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7accordingly ordered to stand part of the Bill.

Clause 8

Assembling a jury

Question proposed, That the clause stand part of the Bill.

Henry Bellingham: Clause 8 is about assembling a jury, and the current situation as I understand itthe Minister will correct me if I am wrongis that juries must number between seven and 11. However, the clause replaces that figure with one of between six and nine. It might well be a sensible move, but I would argue that what is in place at the moment makes more sense. Six is too small a figure for a jury, and I point out to the Committee that the Bar Council is concerned about that. Furthermore, Inquest has also made the point that since the R v. Middleton case, to which I referred earlier, inquest juries have enhanced responsibilities for providing narrative verdicts. Reducing the figure will put a greater onus on that smaller number of jurors. That is not necessary. Will the Minister tell the Committee what is behind that proposal? Is it going to save any money, and if so, how much?

Tim Boswell: Will the Minister also tell the Committee who might object in court to a particular member of the jury and in what circumstances? In other words, do the rules follow those with which we might be more or less familiar through, for example, the Crown court, or is there some special regime and a limited number of people who can engage on this?

Edward Garnier: I assume that it is the senior coroner referred to in subsection (2) who makes the decision about the number of people who serve on the jury, but what are the factors that will influence his decision in choosing which number to summon?

Bridget Prentice: The reason why we have put in six, seven, eight or nine jurors is to give some discretion to the senior coroneralthough it will be likely that the chief coroner will issue a practice direction suggesting that they should generally start with nine jurors. The idea is that if a juror fails to turn up or one becomes ill in the course of a case, it can still go on. It may be that some potential juror turns out to be disqualified when questioned by the coroner. That might partly be the answer to the hon. and learned Gentlemans question.

Edward Garnier: That might relate to the question of how big the jury panel should be, from which the finite number is selected, but I do not think that it answers the point that I put to the Minister.

Bridget Prentice: The hon. and learned Gentleman is right: it was a point about what size the panel will be. Those who can be jurors in an inquest are those who are qualified under the Juries Act 1974. The coroner will be able to question the persons summoned to ensure that they are properly qualified, resident and can be sworn properly to sit on the jury.
Unlike the Crown court, coroners only summon jurors for particular inquests, as we know. It therefore seems unreasonable to summon large numbers of people to serve, considering the changes that some will inevitably need to make to their work and care arrangements. So, it did not seem appropriate to summon far more jurors than might be in the Crown court, as they are unlikely to be required. We also wanted to make sure that if for some a reason a juror dropped out part way through an inquest, the whole inquest would not have to be re-started and a new jury summoned. The coroner will have the power to summon persons to attend and they will be sworn either by him or in his presence. In answer to the hon. Member for Daventry, there will be no opportunity for interested parties to make objections to the jurors who are summoned.

Edward Garnier: It is probably entirely my fault for being obtuse, but if a jury member becomes unfit for some reason and cannot carry on and the coroner wants to carry on with a reduced number of the jury, what has that got to do with clause 8?

Bridget Prentice: Clause 8 is about assembling the jury and it will therefore be for the coroner to decide how many people need to be available.

Edward Garnier: There is some confusion between the jury that sits on an inquestunder clause 8(1), it could be six, seven, eight or nine personsand the wider pool of people who form the jury panel, from which the six, seven, eight or nine are drawn, so a jury of 20 could be reduced by ballot to six, seven, eight or nine. If an inquest has started, however, and there is a jury of six, seven, eight or nine, we either have to return to the Juries Act or we need to have some other guidance or statutory rule stating that, when a jury is reduced by illness from six to five, the coroner has a power to continue. That was the point that the Minister addressed and it has nothing to do with clause 8.

Bridget Prentice: I am sorry but I am totally lost as to what the hon. and learned Gentleman is saying. Clause 8 is about assembling a jury, so the coroner can call on a jury of six, seven, eight or nine persons, and will presumably call a slightly larger number to ensure that those who sit are properly qualified to be jury members. I am not sure what the hon. and learned Gentleman means beyond that.

Tim Boswell: I wonder whether I can assist as a member of the laity. As I construe the clause it is about assembling a jury, which is actually the act of beginning an inquest. The coroner will quite reasonably want a hand of cards, and will then interview and swear in the requisite number that he thinks appropriate. My hon. and learned Friend is making a substantial point, which may well be addressed in other legislation, about the vires of a jury continuing when one or other of its members, having been assembled and sworn in, drops out. My tribunal experience was, of course, different because it involved adjudicating and there was no jury, but I nearly cost people a great deal of money by becoming ineligible in the middle of the process.

Bridget Prentice: I was watching the hon. and learned Member for Harborough to see whether he nodded at the hon. Gentlemans explanation, because I failed to grasp the issue earlier. I will come back to him and the Committee on it, but he may well have a point that needs to be addressed.

Brian Iddon: Is my hon. Friend aware that in some jurisdictions, the Crown and coroners courts share jurors so as not to call far too many people? Will she confirm that the clauses wording does not rule out making surplus jurors from a coroners court available for an adjacent Crown court?

Bridget Prentice: That is absolutely correct and it is a sensible use of jurors and their time, but I do not think that it answers the question asked by the hon. and learned Member for Harborough, so I will have to come back to him on the matter.

Edward Garnier: The point is quite simple: it may well be that a coroner has a power to continue with a reduced number of jurors once a jury has been assembled. There may be a statutory power that allows him to continue with five when he has sworn six, six when he has sworn seven and so on. While it was interesting to hear the Minister talk about that, it does not actually have anything to do with clause 8. We may have other opportunities to discuss her point, but talking about a coroners powers to carry on with fewer jurors than he has assembled is neither here nor there in relation to clause 8.

Roger Gale: Order. The Minister has indicated that she intends to come back to the hon. and learned Gentleman. Knowing the imagination and ingenuity of Committees, I am sure that there will be other opportunities to debate the matter. I am beginning to feel a little perplexed myself. Perhaps the time has come to accept the Ministers undertaking to come back on the subject, unless the Committee wishes to press it still further, and to move on.

Brian Iddon: May I have clarification on the point that I raised a moment ago? I did not get a clear answer from the Minister.

Bridget Prentice: I am happy to come back to the Committee with clarification on both points. I say to the hon. and learned Member for Harborough that I was trying to respond to the opening remarks of the hon. Member for North-West Norfolk regarding why we chose the numbers that we chose.

Jeremy Wright: I may have missed the point too, but we seem to have moved away from the key change here, which is to reduce the number of jurors that an inquest starts with from 11 to nine. In among all the other explanations that the Minister was trying to give, I did not get a clear answer as to why the Government think it necessary to reduce the starting number from 11 to nine.

Bridget Prentice: One of the reasons is to give more flexibility to the coroners, because sometimes there are difficulties in assembling juries for coroners inquests, so it was to give them that little bit more space. It was as simple as that. However, I am not going to go to the wall on the size of jury in a coroners inquest. If Conservative Members want to revert to the present system, I shall happily listen to the arguments.

Henry Bellingham: We are grateful for the last suggestion. Obviously we shall not be voting against clause stand part, but we shall be returning to the issue, because it is important. The Minister has not answered my questions about costs. I am not convinced that post-R. v. Middleton it is sensible to move the numbers down, so we shall return to the issue at a later stage.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Clause 9 ordered to stand part of the Bill.

Clause 10

Determinations and findings to be made

Question proposed, That the clause stand part of the Bill.

Henry Bellingham: Clause 10 is about determinations and findings. For what I am slightly concerned about, look at subsection (2), which says that determinations cannot allude to any criminal or civil liability. In fact, what clause 10(2) does is to enshrine in primary legislation rule 42 of the Coroners Rules 1984. Could the Minister confirm that I am right on that?
Has the Minister seen what Inquest said about clause 10(2)? When the words in subsection (2) were in the secondary legislationthe same words as in rule 42it was held on a number of occasions that they could not defeat the purpose to ascertain how the deceased came by their death, which is contained in section 11 of the current Coroners Act 1988. Thus, an unlawful killing or a neglect verdict could be returned, both of which would, by definition, appear to determine a question of civil liability. As presently drafted, those verdicts could be prevented by clause 10, moreover there continues to be a debate in the courts about whether the wording of an article 2-compliant inquest can contain judgmental words, such as serious or unreasonable. I do not want to delay the Committees proceedings, because we have clause 11 to come to this eveningprobably the most important clause in this part of the Billbut could the Minister put my mind at rest, and the concerns of Inquest?

Bridget Prentice: I am not sure that I shall necessarily be capable of putting the mind of Inquest at rest, but I shall do my best as far as the hon. Gentleman is concerned.
As I have repeatedly said throughout the debates, coroners inquests are findings of factwho the deceased was, how, where and when he or she died, and any particulars required to allow that death to be registered. In some circumstances, it might also cover the circumstances by which the deceased came by his death. The most important thing is that all those determinations have to be framed in such a way that they do not appear to determine the question of criminal liability on the part of a named person, or of civil liability. It is not the job of the coroners inquest to apportion blame or to decide matters of legal liability. That is for the criminal and civil courts. In order to ensure that the distinction between the functions of the different courts remains crystal clear, the outcomes of any coroners investigations have to be framed in the way in which they are in clause 10.

Question put and agreed to.

Clause 10 accordingly ordered to stand part of the Bill.

Clause 11

Certified investigations: Investigation by judge, inquest without jury

Henry Bellingham: I beg to move amendment 40, in clause 11, page 6, line 4, after if, insert
the matter has been referred to the Lord Chief Justice and he or she is.

Roger Gale: With this it will be convenient to discuss the following: amendment 42, in clause 11, page 6, line 6, leave out any of the reasons and insert the reason.
Amendment 43, in clause 11, page 6, line 9, leave out reasons are and insert reason is.
Amendment 41, in clause 11, page 6, leave out lines 12 to 16.
Clause stand part.
Amendment 63, in clause 12, page 7, line 3, leave out Secretary of State and insert
High Court on application by the Secretary of State or by any interested person.
(1A) The court may discontinue a certificate if it is satisfied that the certificate is no longer necessary to prevent material or information being disclosed whose disclosure would be seriously detrimental to national security..
Amendment 64, in clause 12, page 7, line 6, leave out 11(3)(a) and insert [Certified investigations](4)(b).
Amendment 65, in clause 12, page 7, line 9, leave out 11(3) and insert [Certified investigations](4)(b).
Amendment 66, in clause 12, page 7, line 15, leave out from must to end of line 17 and insert
continue with the inquest with the jury already summoned..
Amendment 67, in clause 13, page 7, leave out lines 22 to 31 and insert
(d) disclosure for the purposes of an inquest for which a certificate exists under section 11 of the Coroners and Justice Act 2009; or.
Amendment 68, in clause 13, page 7, line 41, after Court, insert or Coroner.
Amendment 69, in clause 13, page 7, line 42, after judge, insert or coroner.
Amendment 125, in clause 34, page 19, leave out lines 10 to 12.
Amendment 110, in clause 38, page 23, line 28, leave out from 5 to end of line 29.
Amendment 109, in schedule 9, page 139, line 3, leave out from beginning to end of line 6 on page 140.
New clause 10Certified investigations
(1) The Secretary of State may apply to the High Court for a certificate ordering that an inquest be held in camera.
(2) The Secretary of State may only apply for a certificate if he is satisfied that it would be necessary to prevent material or information being disclosed whose disclosure would be seriously detrimental to national security.
(3) The court may only grant the certificate if it is satisfied
(a) that granting the certificate is necessary to prevent material or information being disclosed whose disclosure would be seriously detrimental to national security; and
(b) that other measures short of granting a certificate would not be adequate to prevent such disclosure.
(4) Where the court grants a certificate, the following provisions apply
(a) Chapter 2 of Part 3 of this Act (witness anonymity orders) shall apply as if a coroners court were a court for the purposes of that Chapter, as if the proceedings at an inquest were criminal proceedings for the purpose of that Chapter, and as if references to the prosecutor in that Chapter included a reference to the Secretary of State;
(b) the Lord Chief Justice may appoint a judge of the High Court to act as coroner for the case, and a judge so appointed shall have the same functions and powers in relation to the body and the investigation as would be the case if he or she were the senior coroner in whose area the body was situated;
(c) the jury may be subject to checking in accordance with the Attorney Generals Guidelines on Jury Checks.
(5) If a just has already been summoned when a certificate is issued, that jury must be discharged and a new jury summoned.
(6) The certificate may require that part of the inquest be held in camera and part in public, and the court must only issue a certificate requiring the whole of an inquest to be held in camera if that is necessary to prevent material or information being disclosed whose disclosure would be seriously detrimental to national security.
(7) Where a certificate has been issued under this section, the coroner or judge may at any time, taking into account whether any witness anonymity orders have been made, admit to the proceedings any interested person he may specify, provided that he is satisfied that doing so will not lead to material or information being disclosed whose disclosure would be seriously detrimental to national security.
(8) Where a decision made by a judge conducting an investigation by virtue of this section gives rise to an appeal under section 30, that section has effect as if references in it to the Chief Coroner were references to a judge of the Court of Appeal nominated by the Lord Chief Justice.
(9) A reference in this section or section 12 to conducting an investigation, in the case of an investigation that has already begun, is to be read as a reference to continuing to conduct it..

Henry Bellingham: The clause is highly controversial. It has been the subject of a great deal of debate and a huge amount of opposition from a great number of organisations. The provision was contained in the Counter-Terrorism Bill, which is now the Counter-Terrorism Act 2008. At the time, we argued that it was a step too far. We said that it would destroy public confidence in the coronial system. We thought that the Government had listened to us because they withdrew the proposal from the Bill. We were very disappointed when we saw it come back in the form of clause 11.
What the Government are doing will undermine public confidence in the coronial system. The public expects openness and transparency and for inquests to be held in a totally non-confrontational environment. They also expect to be able to know exactly what is going on. The Minister has arguedand the Secretary of State argued on Second Readingthat there are some inquests in which the current safeguards to protect national security and the identity of key personnel, and to detect crime are not adequate.
The Secretary of State has also pointed out that two inquests have stalled because the safeguards and arrangements are inadequate. What the Secretary of State did not explain to the House on Second Reading was the details of those two inquests. As an aside, he merely pointed out that two inquests had ground to a halt. Is it really the case that those inquests ground to a halt because safeguards were not adequate, or was it because the Government want to put in place a system in which everything can be done very conveniently and easily through the certification process? Those inquests would then be completely private, presided over by a High Court judge.
Will the Minister elaborate as much as she possibly can on those two inquests and tell the House why present safeguards are not adequate? I put it to her on Second Reading that if she looked at the inquests of Jean Charles de Menezes and, the RAF Nimrod disaster, she would find that both covered highly delicate controversial material, and, it could be argued, that both dealt with issues of national security. One certainly dealt with the relationship between the UK and another country, and both dealt with many other highly sensitive matters. However, current safeguards were called into play. For example, public interest immunity certificates were issued, and the police and other agents of the Crown gave evidence behind a screen. The inquests could also be held in camera. I argue that those inquests show that the present safeguards work.
My concern is simple. If the clause is enacted, it will be easy for the Secretary of State to say that it would be convenient, and that it would be in our interests, to close down debate, do away with transparency, and have the inquest in secret from the word go rather than at some stage during the hearing. The Secretary of State told me that those two inquests would not have been affected by the proposed procedures. I do not accept that. Ministers are suggesting a huge increase in power for the Secretary of State.
I believe that the clause should not remain part of the Bill, as it will undermine public confidence in the system. The Ministers arguments do not stack up. Bearing that in mind, we are very concerned. We want a system that has credibility and commands public support. We should consider the matter from the viewpoint of the families involved in the Nimrod disaster and the family of Jean Charles de Menezes. If the Secretary of State had used these powersif they had been on the statute bookthere would have been an outcry not only from the families; there would have been a major public outcry. The Secretary of State may save himself and other Ministers some potential embarrassment in a small number of inquests by using those powers, but it would undermine the entire coronial system. The system requires and demands public support.
Those are the reasons why we are not happy with clause 11. If the Government insist on it remaining in place, safeguards will be needed. That is why we tabled amendments 40 to 43. I shall consider those safeguards and what they entail.
In amendment 40, we suggest that rather than the Secretary of State certifying an investigation, he or she should refer the matter to the Lord Chief Justice. The Lord Chief Justice would then have to be of the opinion that an
investigation will concern...a matter that should not be made public.
We say that the power should not be in the hands of the Secretary of State; he could refer a matter to the Lord Chief Justice for him to make a decision. In that respect, amendment 40 is similar to some of the Liberal Democrat amendments.
If the clause remains part of the Bill, further safeguards will be needed. The reasons on offer in the Bill for matters not to be made public are widely framed. They are listed in subsection (2). Paragraph (a) states:
in order to protect the interests of
(i) national security,
(ii)the relationship between the United Kingdom and another country, or
(iii) preventing or detecting crime;
Paragraph (b) states:
in order to protect the safety of a witness or other person.
However, it is the last paragraph that really does it for me and for my hon. and learned Friend the Member for Harborough. Paragraph (c) states:
 otherwise in order to prevent real harm to the public interest.
That, surely, is a catch-all provision. My concern is that rather than two, three or four inquests a year being covered by the clause, if enacted, the number will escalate. It will be convenient for Ministers of whatever colour to exercise those powers in order to save them, their agents and Government officials the inconvenience of being involved in being transparent and open.

Jeremy Wright: Does my hon. Friend agree that one of the most worrying aspects of the problems he is describing is this: subsection (2)(c) reads,
otherwise in order to prevent real harm to the public interest,
and subsection (1) states that the
Secretary of State may certify an investigation under this Part into a persons death if of the opinion that,
so we are simply dealing with the Secretary of States opinion that the public interest could be harmed in a real way?

Henry Bellingham: My hon. Friend is 100 per cent. right. That is why it cannot possibly be based on the Secretary of States opinion, and why it should based on the opinion of someone as independent and robust as the Lord Chief Justice.

David Kidney: Is not the hon. Gentleman uncomfortable with the idea that the judiciary would make the judgment about national security rather than the Executive? Is that fundamentally the Executives role, not the judiciarys?

Henry Bellingham: This Government have brought in a lot of legislation that we think has trammelled the rights of individuals and reduced liberties in this country. Indeed, we believe that they have turned this country into a less free country, and they have other plans in mind. I find it ironic that, having been out of Parliament for a while and come back in as a mainstream Conservative, I very often find myself on the libertarian left of the Government on so many issues. I would rather trust someone such as the Lord Chief Justice than the current Secretary of State. We must have built-in safeguards. I am not saying that that is the only safeguard, but one can rely on the independence of the judiciary of this country.

Tim Boswell: I have two quick points for my hon. Friend to consider. First, on the legislative creep that has arisen over counter-terrorism, is he aware that I had an interesting conversation with an entirely sensible Icelandic MP who expressed great resentment of the procedure against her country under counter-terrorism legislation? Secondly, on the argument that he is making on the amendments on judicial involvement, does he agree that even if the Government decide not to move in that direction, as recommended by a number of interesting people, including Lord Pannick in a recent article, it will nevertheless happen in practice? Any single decision taken by the Secretary of State is likely to be appealed through judicial review, so in the end, it will become a judicial decision, even if it begins as an administrative decision.

Roger Gale: Order. The hon. Gentleman may wish to address the issue of legislative creep, but I would prefer it if he did not go too far towards the Arctic circle.

Henry Bellingham: I am grateful to my hon. Friend because he touched on the very good point that it was indeed measures in the Counter-Terrorism Act that were used by the Treasury and Financial Services Authority to freeze Icelandic assets in this country. In the process, they froze the assets of a number of UK investment banks that were viable businesses, one of which, Kaupthing Singer & Friedlander, has gone into liquidation in both the Isle of Man and London. It was a misuse of that legislation. We could have a long debateI do not plan to have it tonighton how the Government have misused existing legislation for purposes for which it was never planned.
I should like to consider what some independent organisations have said about the proposals, because they have met with absolute, widespread dismay across the board. Inquest, for example, said:
The proposals amount to a fundamental attack on the independence and transparency of the coronial system in England and Wales. They are fundamentally flawed...disconnected from legal principles; and have
come about
without any consultation with stakeholders.
That will generate anxiety among some of the families of people who have died in contentious circumstances, in particular in detention or the military.
Liberty, which has been fighting on these issues for 75 years, states:
Clause 11 introduces a provision which would gravely limit transparency, and increase executive control, over the inquest process. Clause 11(1) allows the Secretary of State to issue a certificate that an inquest will be held without a jury.
It goes on to say:
The removal of juries will effectively allow secret inquests to take place following deaths that result from state actions.
Liberty says that it is appalled at the Government proposals and that they go a long way to undermining the good that is in the Bill.

Maria Eagle: Given the evidence from Liberty, does the hon. Gentleman accept that that organisation would consider his amendments to be outwith article 2 compliance?

Henry Bellingham: I accept that Liberty is not very keen on the idea of the Lord Chief Justice being put in the Bill. However, it did not say that it would rather have the Secretary of State taking on that matter. I accept that it is not happy with the amendment.
In its briefing paper, Justice makes it clear that it cannot go along with the clause. It states that
the government appears to dramatically overestimate the extent to which the European Court of Human Rights (ECtHR) would allow the wholesale exclusion of the public and next-of-kin from coronial proceedings for the sake of some substantial public interest in non-disclosure of sensitive material.
Along with the other two organisations, it goes on to say that the clause will undermine public confidence.
The clock is ticking, Mr. Gale, and I am conscious that many hon. Members want to speak. However, I put it to the Minister that we need a great deal of convincing that the two ongoing inquests that have stalled could not have been allowed to continue using existing safeguards. We need to be convinced by Ministers that the benefits of the clause, which is draconian in its scope and wholly ill-thought-out in many ways, will outweigh the costs. I put it to the Minister that the cost of the damage that will be done to public confidence and trust in the coronial system will not outweigh the small benefit, and that at a time when the Government are suffering substantially from a lack of credibility in that area.
I will not support the clause unless the Minister can come up with very good reasons for the stalling of those two inquests and for not being able to accept the safeguards proposed in the amendments.

Roger Gale: Before we proceed, the time has come for me to make an announcement. The usual channels have indicated that we intend to adjourn at 7 oclock tonight. The Committee will effectively not sit for a fortnight because it has decided not to sit on Thursday. We are beginning to play beat the clock. I mention that because most Committee members are present. I am minded to suggest to the usual channels that we consider sitting on the Tuesday evening when we return, as well as in the afternoon. It would be helpful to know whether that will happen before the House rises on Thursday so that hon. Members and staff of the House have adequate notice.

David Howarth: The more one reads the clause, the more extraordinary it becomes. Most of the debate has been about protecting information and, for example, ensuring that the names of agents are not revealed to enemies of the state. However, nowhere in the clause is sitting in private or in camera mentioned. The only effects of a certificate under the clause are that the coroner is replaced by a High Court judge and, far more importantly, that the jury is removed. This is an anti-jury clause more than anything else.
I do not deny that there is a need for some inquests in exceptional cases to be heard outside the public gaze. I do not deny what the Secretary of State said about how the public interest immunity procedure is not ideally suited to the inquisitorial nature of the coroners court; it was designed for the adversarial conditions of the criminal and civil courts. I do not deny either of those things, although it would be amazing if a public interest immunity certificate was not issued in the kind of circumstances that he mentioned.
I cannot understand why clause 11 is drafted in such dramatically broad terms. As the hon. Member for North-West Norfolk mentioned, it is not restricted to national security concerns, but goes into a great long list of other possible applications, including merely relations with other statesin other words, foreign policy embarrassmentand the appalling catch-all of
real harm to the public interest,
which, as far as I can tell, could mean anything. Furthermore, under the clause, the Secretary of State may simply certify, by fiat, Thats enough, we dont want a jury in this case.
Returning to the central point, the clause is all about the exclusion of the jury. I cannot understand why we cannot have juries on inquests where national security is at stake, as we do in criminal trials. Juries sit on espionage and terrorism cases; they do not necessarily sit in public, but they still have a jury, which is a crucial institution, not just in the world of criminal trials, but in the coroners court and inquests. Especially in cases of a death at the hands of the state, such as the de Menezes and Mousa cases, the jury is the ultimate guarantor against a stitch-up. All this eloquent stuff about public confidence in the system is about knowing that ordinary people have heard the evidence and decided that it is not a stitch-up. That is also the point of human rights jurisprudence: the high-falutin stuff about article 2 and the question of sufficient public scrutiny to ensure accountability. In the end, that simply means that we can be reasonably confident that ordinary people have agreed that what went on was not a stitch-up. Why can we not design the system so that, in national security cases, an inquest jury still hears the case? What do we need to put in place so that that can happen?
Furthermore, there is the matter of the importance of the family of the deceased and of ensuring that they, or other interested persons, have as much access as possible to the hearing. We need to ensure as much as possible that, given the interests of national security, we do as much as we can to bring the family back in. Designing that system is the task in front of us. The clause just takes the easy way outthe line of least resistancein giving the Secretary of State maximum discretion in getting rid of the jury on a whim. Under the clause, that is enough. If we really cared about the jury as an institution, and about doing everything possible to get the family back into the hearing, we would try much harder to design a more carefully graduated system, as we have with our new clause 10. Obviously, it is not perfect, but it is an attempt to show what could be done, if our aim is to preserve the jury at the heart of the inquest and to bring the family back ineven in national security cases, if possible.
New clause 10 states that the Secretary of State cannot just make a certificate, but must apply to the court. The Secretary of State must be satisfied that national security and only national security is at risk, and the court must be satisfied of that and also that hearing the case in camera is the only way to protect national securitythat measures short of that would not work. The new clause does not exclude the jury. The effect of a certificate is simply that the hearing is in camera; the jury is still there, hearing the case.
The Secretary of State has said that one of the problems in this area is the risk to the lives of officers and agents of the security and secret intelligence services. How do we protect their identities? Somewhere else in the Bill is an entire chapter on anonymous witnesses. It was controversial when it went through the Housethere are some difficulties in itbut nevertheless it is in the Bill. The anonymous witness provisions in the Bill do not apply to coroners courts. They apply only to criminal courts. If on application by the Secretary of State, the court grants a certificate of the type referred to in the new clause, why can we not apply the anonymous witness provisions to that inquest? Would that not protect the identities of those security staff?
Another thing that we could do, were it thought betterI am not sure that it iswould be to have a High Court judge rather than a coroner hear the case. We could give the Lord Chief Justice the power to replace the coroner with a High Court judge, if the Lord Chief Justice considered that appropriate. What I do not like in clause 11 is the automatic replacement of the coroner by a High Court judge. I do not understand why that is necessary.
The third thing that we could do would be to security-vet the jury. That already happens in espionage and terrorism trials. The Attorney-General has issued guidancein place since 1989, I thinkon security-vetting juries in espionage and terrorism cases. We could simply apply that guidance to the jury in this sort of inquest. If we had those sorts of procedures, I cannot see why we should not continue to have a jury. Moreover, if in a case of this sort, with a security-vetted jury and anonymous witnessesthe agents of the state whose identity should not be revealedbeing heard in camera or otherwise, there was no risk to national security, why not let the families back in at that point, if the coroner or the High Court judge thought that there was no risk to national security, given the measures that had been taken? We could, if we wanted to, meet the serious points that the Secretary of State has made about protecting national security and the identities of officers and agents, and still maintain the institution of the jury at the heart of an inquest.
As the hon. Member for North-West Norfolk said, there is some common ground between his amendments and ours. We are both looking for some degree of judicial control, and to restrict the conditions under which certificates relate to national security and nothing else. The combination of those two points is that the judiciary has some role in checking whether national security really is at stake. If we do not have that, national security becomes the Executive branchs flexible friend, to be invoked whenever it feels that it does not want anyone to inquire into what it is doing.
So there is some common ground between us, but where we differ, crucially and unfortunatelyI believe that this is the point that the Minister was trying to make to the hon. Gentlemanis that the Conservative amendments still exclude the jury, whereas ours do not. In the end, it comes down simply to this: does one accept that ordinary members of the public have a role in this kind of case? Are they ever to be trusted? Our starting point is that often they are more to be trusted than Ministers and judges, but the Governments starting point seems to be the opposite.

Ordered, That further consideration be now adjourned.(Ian Lucas.)

Adjourned till Tuesday 24 February at half-past Ten oclock.